De Albuquerque Packer (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Subclass 457 (Temporary Work (Skilled)) visa. The applicant had been nominated for the occupation of Building Associate by Mustang Building Services Pty Ltd. The core of the dispute revolved around whether the applicant possessed the necessary skills, qualifications, and employment background to perform the tasks of the nominated occupation, as required by clauses 457.223(4)(da) and (e) of the relevant regulations.

The court was required to determine if the applicant had demonstrated that he possessed the requisite skills, qualifications, and employment background for the nominated occupation of Building Associate. This involved assessing the applicant's submitted evidence, including his CV, a Diploma of Management, PAYG statements, and a reference letter, against the requirements outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for a Building Associate, which specifies a Skill Level 2, typically requiring an Associate Degree, Advanced Diploma, or Diploma, or at least three years of relevant experience.

The court found that the applicant's duties as a Site Supervisor with the sponsoring company were commensurate with those of a Building Associate as described in the ANZSCO. Crucially, the applicant had nearly six years of experience in this role, significantly exceeding the three years of relevant experience that could substitute for formal qualifications. While the applicant held a Diploma of Management, a Level 2 qualification, the court considered his extensive work experience to be sufficient to meet the requirements of clause 457.223(4)(da). Consequently, the court remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clauses 457.223(4)(da) and (e).